Court of Justice of the European Communities (including Court of First Instance Decisions)

AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - MILK AND MILK PRODUCTS - EXPORT REFUNDS - ADVANCE FIXING - SUSPENSION - SPECIAL MEASURE WITHIN THE MEANING OF REGULATION NO 2044/75 - APPLICATION TO OUTSTANDING APPLICATIONS FOR ADVANCE FIXING
( REGULATION NO 876/68 OF THE COUNCIL ; REGULATION NO 2044/75 OF THE COMMISSION , ART . 3 ( 3 ))

ARTICLE 3 ( 3 ) OF REGULATION NO 2044/75 ON SPECIAL DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF IMPORT AND EXPORT LICENCES AND THE ADVANCE FIXING OF REFUNDS IN RESPECT OF MILK AND MILK PRODUCTS , WHICH STATES THAT EXPORT CERTIFICATES ARE TO BE ISSUED ON THE FIFTH WORKING DAY FOLLOWING THAT ON WHICH THE APPLICATION IS LODGED UNLESS SPECIAL MEASURES ARE TAKEN IN THE INTERVENING PERIOD , MUST BE INTERPRETED AS MEANING THAT A MEASURE SUSPENDING THE ADVANCE FIXING OF EXPORT REFUNDS , ADOPTED IN CONFORMITY WITH REGULATION NO 876/68 , MUST BE REGARDED AS A ' ' SPECIAL MEASURE ' ' REFERRED TO BY THAT PROVISION .

WHEN SUCH A MEASURE OF SUSPENSION IS ADOPTED BY THE COMMISSION , APPLICATIONS FOR ADVANCE FIXING SUBMITTED PRIOR TO THE PERIOD OF SUSPENSION BUT ON WHICH A DECISION IS TO BE TAKEN DURING THAT PERIOD MUST BE REJECTED IN THE SAME WAY AS APPLICATIONS SUBMITTED DURING THE PERIOD OF SUSPENSION .

IN CASE 276/82
REFERENCE TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN ( ADMINISTRATIVE COURT OF LAST INSTANCE IN MATTERS OF TRADE AND INDUSTRY ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
ROOMBOTERFABRIEK ' ' DE BESTE BOTER ' ' BV , BEST ,
AND
PRODUKTSCHAP VOOR ZUIVEL ( DAIRY BOARD ), RIJSWIJK ,

ON THE INTERPRETATION OF REGULATION ( EEC ) NO 2044/75 OF THE COMMISSION OF 25 JULY 1975 ON SPECIAL DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF IMPORT AND EXPORT LICENCES AND THE ADVANCE FIXING OF REFUNDS IN RESPECT OF MILK AND MILK PRODUCTS ( OFFICIAL JOURNAL L 213 , P . 15 ),

1 BY ORDER DATED 12 OCTOBER 1982 , WHICH WAS RECEIVED AT THE COURT ON 15 OCTOBER 1982 , THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN ( ADMINISTRATIVE COURT OF LAST INSTANCE IN MATTERS OF TRADE AND INDUSTRY ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS AS TO THE INTERPRETATION AND , IF APPROPRIATE , THE VALIDITY OF ARTICLE 3 ( 3 ) OF REGULATION ( EEC ) NO 2044/75 OF THE COMMISSION OF 25 JULY 1975 ON SPECIAL DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF IMPORT AND EXPORT LICENCES AND THE ADVANCE FIXING OF REFUNDS IN RESPECT OF MILK AND MILK PRODUCTS ( OFFICIAL JOURNAL 1975 , L 213 , P . 15 ).

2 THOSE QUESTIONS WERE RAISED IN AN ACTION BROUGHT BEFORE THAT COURT BY ROOMBOTERFABRIEK ' ' DE BESTE BOTER ' ' BV , THE PLAINTIFF IN THE MAIN PROCEEDINGS , FOR THE ANNULMENT OF A DECISION OF THE PRODUKTSCHAP VOOR ZUIVEL ( DAIRY BOARD ), THE DEFENDANT IN THE MAIN PROCEEDINGS , REFUSING AN APPLICATION MADE BY THE PLAINTIFF ON 17 NOVEMBER 1980 FOR THE ISSUE OF EXPORT CERTIFICATES WITH ADVANCE FIXING OF REFUNDS IN RESPECT OF SEVERAL INVITATIONS TO TENDER OPENED IN NON-MEMBER COUNTRIES FOR THE SUPPLY OF LARGE QUANTITIES OF BUTTER AND BUTTER-OIL .

3 THE REFUSAL TO ISSUE THE CERTIFICATES FOLLOWED A CIRCULAR SENT BY THE PRODUKTSCHAP TO EXPORTERS OF MILK AND MILK PRODUCTS INFORMING THEM THAT BY REGULATION ( EEC ) NO 2993/80 OF 19 NOVEMBER 1980 TEMPORARILY SUSPENDING ADVANCE FIXING OF THE EXPORT REFUND FOR BUTTER AND BUTTER-OIL ( OFFICIAL JOURNAL 1980 , L 310 , P . 18 ) THE COMMISSION HAD DECIDED TO SUSPEND THE ADVANCE FIXING OF REFUNDS ON EXPORTS OF BUTTER AND BUTTER-OIL TO NON-MEMBER COUNTRIES FROM 20 TO 27 NOVEMBER 1980 . THE PRODUKTSCHAP ALSO INFORMED EXPORTERS THAT ACCORDING TO THE SAME DECISION APPLICATIONS FOR ADVANCE FIXING LODGED BETWEEN 17 AND 19 NOVEMBER INCLUSIVE WERE ALSO REJECTED .

4 THE MAIN ARGUMENT OF THE PLAINTIFF BEFORE THE NATIONAL COURT WAS THAT THE DECISION IN QUESTION WAS BASED ON A WRONG INTERPRETATION OF ARTICLE 3 ( 3 ) OF REGULATION NO 2044/75 AND ALTERNATIVELY THAT IF THE DEFENDANT ' S INTERPRETATION WAS RIGHT REGULATION NO 2993/80 MUST BE DECLARED INVALID OR AT LEAST INAPPLICABLE AS AGAINST THE PLAINTIFF .

5 THOSE ARGUMENTS PROMPTED THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN TO REFER THE FOLLOWING QUESTIONS TO THE COURT :
' ' 1 . MUST ARTICLE 3 ( 3 ) OF REGULATION ( EEC ) NO 2044/75 OF THE COMMISSION OF 25 JULY 1975 BE INTERPRETED AS MEANING THAT THE EXPRESSION ' SPECIAL MEASURES ' INCLUDES A DECISION SUSPENDING THE POSSIBILITY OF ADVANCE FIXING OF REFUNDS PURSUANT TO THE PROVISIONS OF REGULATION ( EEC ) NO 876/68 OF 28 JUNE 1968?

2.IF THE FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE , DOES A CORRECT INTERPRETATION OF ARTICLE 3 ( 3 ) ENTAIL THE REJECTION OF APPLICATIONS FOR ADVANCE FIXING WHICH WERE SUBMITTED BEFORE THE PERIOD OF SUSPENSION BUT ON WHICH A DECISION MUST BE TAKEN DURING THAT PERIOD?

3.IF THE SECOND QUESTION IS ALSO ANSWERED IN THE AFFIRMATIVE , MUST THE VIEW BE TAKEN THAT ARTICLE 3 ( 3 ) IS IN CONFLICT WITH COMMUNITY LAW , IN PARTICULAR WITH ARTICLE 5 ( 4 ) OF REGULATION ( EEC ) NO 876/68 OF THE COUNCIL OF 28 JUNE 1968 , OR WITH THE PRINCIPLE OF LEGAL CERTAINTY WHICH FORMS PART OF COMMUNITY LAW?
' '
FIRST QUESTION
6 ARTICLE 3 OF REGULATION NO 2044/75 CONTAINED ON 17 NOVEMBER 1980 A PARAGRAPH ( 3 ) INSERTED BY COMMISSION REGULATION ( EEC ) NO 445/77 OF 2 MARCH 1977 SUPPLEMENTING REGULATION ( EEC ) NO 2044/75 AS REGARDS THE ADVANCE FIXING OF THE REFUND FOR BUTTER ( OFFICIAL JOURNAL , L 58 , P . 21 ) AND LAST AMENDED BY COMMISSION REGULATION ( EEC ) NO 203/80 OF 30 JANUARY 1980 ( OFFICIAL JOURNAL , L 24 , P . 18 ) WHICH PROVIDED THAT EXPORT CERTIFICATES FOR PRODUCTS INCLUDING BUTTER AND BUTTER-OIL WERE TO BE ISSUED ON ' ' THE FIFTH WORKING DAY FOLLOWING THAT ON WHICH THE APPLICATION IS LODGED , UNLESS SPECIAL MEASURES ARE TAKEN IN THE INTERVENING PERIOD ' ' .

7 SINCE THE EXPRESSION ' ' SPECIAL MEASURES ' ' IS NOT EXPRESSLY DEFINED IN THAT PROVISION IT IS NECESSARY IN ORDER TO ANSWER THE QUESTION RAISED TO CONSIDER FIRST THE PURPOSE OF THE SYSTEM OF ADVANCE FIXING OF REFUNDS . ACCORDING TO THE FIRST RECITAL IN THE PREAMBLE TO REGULATION ( EEC ) NO 2429/72 OF 21 NOVEMBER 1972 CONCERNING THE SUSPENSION OF THE APPLICATION OF THE PROVISIONS FOR THE ADVANCE FIXING OF LEVIES AND EXPORT REFUNDS IN DIFFERENT SECTORS OF THE COMMON ORGANIZATION OF THE MARKET ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( NOVEMBER ), P . 48 ) THE SYSTEM WAS SET UP ' ' IN THE INTEREST OF STABLE TRADING CONDITIONS ' ' . THE POSSIBILITY OF ADOPTING SPECIAL MEASURES TENDS , IT IS STATED , TO AVOID , ' ' IN CASES OF ABNORMAL RESORT TO THIS SYSTEM BY THE PERSONS CONCERNED , . . . DIFFICULTIES ON THE MARKET IN QUESTION ' ' .

8 MOREOVER , IT WAS FOR THAT PURPOSE THAT REGULATION NO 445/77 INTRODUCED A WAITING PERIOD , SINCE , ACCORDING TO THE PREAMBLE TO THAT REGULATION , THAT PERIOD WAS INTRODUCED ' ' SO THAT THE MARKET SITUATION , MAY BE ASSESSED AND , IF NECESSARY , THE APPROPRIATE MEASURES MAY BE TAKEN WITH REGARD TO THE APPLICATIONS IN QUESTION ' ' .

9 THE DECISION TO SUSPEND THE SYSTEM OF FIXING REFUNDS IN ADVANCE IS UNQUESTIONABLY SUCH A MEASURE SINCE ARTICLE 5 ( 4 ) OF REGULATION ( EEC ) NO 876/68 OF THE COUNCIL OF 28 JUNE 1968 LAYING DOWN GENERAL RULES FOR GRANTING EXPORT REFUNDS ON MILK AND MILK PRODUCTS AND CRITERIA FOR FIXING THE AMOUNT OF SUCH REFUNDS ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( I ), P . 234 ), AS AMENDED BY ARTICLE 9 OF REGULATION NO 2429/72 , PROVIDES THAT SUCH A DECISION MAY BE ADOPTED ' ' WHEN EXAMINATION OF THE MARKET SITUATION SHOWS THAT THERE ARE DIFFICULTIES DUE TO THE APPLICATION OF THE PROVISIONS CONCERNING THE ADVANCE FIXING OF THE EXPORT REFUND , OR THAT SUCH DIFFICULTIES MAY OCCUR ' ' .

10 IT NEED ONLY BE ADDED THAT THE REASON GIVEN FOR THE ADOPTION OF THE RELEVANT DECISION TO SUSPEND ADVANCE FIXING WAS THAT THE SITUATION ON THE MARKET IN BUTTER AND BUTTER-OIL MIGHT LEAD TO THE SPECULATIVE FIXING OF THE REFUND SO THAT IT MAY BE CONCLUDED THAT A DECISION TO SUSPEND ADVANCE FIXING WHICH INTERRUPTS THE NORMAL OPERATION OF THE ADVANCE-FIXING SYSTEM MUST BE REGARDED AS A ' ' SPECIAL MEASURE ' ' .

11 CONSEQUENTLY THE ANSWER TO THE FIRST QUESTION PUT BY THE NATIONAL COURT SHOULD BE THAT ARTICLE 3 ( 3 ) OF REGULATION NO 2044/75 MUST BE INTERPRETED AS MEANING THAT A MEASURE SUSPENDING THE ADVANCE FIXING OF EXPORT REFUNDS , ADOPTED IN CONFORMITY WITH REGULATION NO 876/68 , MUST BE REGARDED AS A ' ' SPECIAL MEASURE ' ' .

SECOND QUESTION
12 SINCE THE FIRST QUESTION HAS BEEN ANSWERED IN THE AFFIRMATIVE IT IS NECESSARY TO CONSIDER WHETHER ARTICLE 3 ( 3 ) OF REGULATION NO 2044/75 ALSO MEANS THAT APPLICATIONS FOR ADVANCE FIXING SUBMITTED BEFORE THE PERIOD OF SUSPENSION BUT ON WHICH A DECISION HAD TO BE TAKEN DURING THAT PERIOD MUST BE REJECTED .

13 AS TO THAT POINT IT MUST BE OBSERVED THAT IT FOLLOWS FROM THE PURPOSE FOR WHICH A WAITING PERIOD IN REGULATION NO 445/77 , AS AMENDED BY REGULATION NO 203/80 , WAS INTRODUCED THAT AN APPLICATION FOR ADVANCE FIXING CONFERS ENTITLEMENT ONLY IF NO APPROPRIATE MEASURE IS ADOPTED DURING THAT PERIOD IN RELATION TO OUTSTANDING APPLICATIONS .

14 IT IS ALSO CLEAR FROM ALL THE RELEVANT RULES THAT THE MAIN PURPOSE OF THE DECISION TO SUSPEND ADVANCE FIXING WAS TO PROTECT THE OPERATION OF THE SYSTEM OF ADVANCE FIXING OF THE REFUND AGAINST SUDDEN , MASSIVE AND VERY OFTEN SPECULATIVE EXPORTS .

15 THE EFFECTIVENESS OF SUCH A MEASURE WOULD , HOWEVER , BE SEVERELY IMPAIRED IF THE EFFECT OF THE SUSPENSION ON APPLICATIONS FOR ADVANCE FIXING SUBMITTED PRIOR TO THE PERIOD OF SUSPENSION WERE DIFFERENT FROM ITS EFFECT ON APPLICATIONS SUBMITTED DURING THAT PERIOD AND IF ARTICLE 5 ( 4 ) OF REGULATION NO 876/68 DID NOT APPLY TO THEM .

16 CONSEQUENTLY , WHEN A DECISION TO SUSPEND ADVANCE FIXING IS ADOPTED BY THE COMMISSION , AN APPLICATION FOR ADVANCE FIXING SUBMITTED PRIOR TO THE SUSPENSION BUT ON WHICH A DECISION IS TO BE TAKEN DURING THE WAITING PERIOD MUST BE REJECTED IN THE SAME WAY AS APPLICATIONS SUBMITTED DURING THE PERIOD OF SUSPENSION .

17 THE ANSWER TO THE SECOND QUESTION MUST THEREFORE BE THAT ARTICLE 3 ( 3 ) OF REGULATION NO 2044/75 MUST BE INTERPRETED AS MEANING THAT APPLICATIONS FOR ADVANCE FIXING SUBMITTED BEFORE THE PERIOD OF SUSPENSION BUT ON WHICH A DECISION IS TO BE TAKEN DURING THAT PERIOD MUST BE REJECTED .

THIRD QUESTION
18 THE THIRD QUESTION PUT BY THE NATIONAL COURT IS WHETHER ARTICLE 3 ( 3 ) OF REGULATION NO 2044/75 , AS SO CONSTRUED , IS IN CONFLICT WITH COMMUNITY LAW , NAMELY FIRST WITH ARTICLE 5 ( 4 ) OF REGULATION NO 876/68 AND SECONDLY WITH THE PRINCIPLE OF LEGAL CERTAINTY .

19 AS REGARDS THE FIRST PART OF THAT QUESTION , IT SHOULD FIRST BE POINTED OUT THAT THE INTERPRETATION INDICATED ABOVE IS DERIVED FROM THE PURPOSE OF THE SYSTEM OF SUSPENSION OF ADVANCE FIXING , AS REVEALED ALSO BY ARTICLE 21 ( 2 ) AND ( 3 ) OF REGULATION NO 804/68 ON THE COMMON ORGANIZATION OF THE MARKET IN MILK AND MILK PRODUCTS ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( I ), P . 176 ) IN CONJUNCTION WITH ARTICLE 2 ( 1 ) ( B ) OF REGULATION NO 2115/71 OF 28 SEPTEMBER 1971 LAYING DOWN THE CONDITIONS FOR APPLYING PROTECTIVE MEASURES IN THE MARKET IN MILK AND MILK PRODUCTS ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( III ), P . 829 ). INDEED , UNDER THE TERMS OF THOSE PROVISIONS EVEN OUTSTANDING APPLICATIONS FOR THE ISSUE OF EXPORT LICENCES MAY BE REJECTED IN THE EVENT OF A SERIOUS DISTURBANCE OF THE MARKET . NEXT , IT SHOULD BE POINTED OUT THAT , ALTHOUGH ARTICLE 5 ( 4 ) OF REGULATION NO 876/68 REFERS ONLY TO APPLICATIONS FOR ADVANCE FIXING LODGED DURING THE PERIOD OF SUSPENSION , THE EFFECTIVENESS OF THE SUSPENSION WOULD BE SEVERELY IMPAIRED IF THE RULE LAID DOWN BY THAT PROVISION COULD NOT BE EXTENDED TO OUTSTANDING APPLICATIONS . IT FOLLOWS THAT THE REJECTION OF SUCH APPLICATIONS IS NOT CONTRARY TO ARTICLE 5 ( 4 ) OF REGULATION NO 876/68 .
20 AS REGARDS THE APPLICATION OF THE PRINCIPLE OF LEGAL CERTAINTY , THE FIRST POINT TO BE MADE IN THIS REGARD IS THAT AN APPLICATION FOR ADVANCE FIXING CONFERS ONLY A CONTINGENT ENTITLEMENT SINCE THE RULES CONTAIN THE EXPRESS PROVISO THAT ' ' SPECIAL MEASURES ' ' MAY BE ADOPTED DURING THE WAITING PERIOD .

21 SECONDLY , TRADERS IN THE PRODUCTS IN QUESTION COULD NOT HAVE BEEN UNAWARE THAT DURING 1980 ADVANCE FIXING HAD ALREADY BEEN SUSPENDED FIVE TIMES .

22 IT FOLLOWS FROM THOSE TWO OBSERVATIONS THAT THERE WERE SUFFICIENT INDICATIONS OF THE UNCERTAINTY OF THE SITUATION ON THE MARKET IN BUTTER AND BUTTER-OIL IN 1980 AND THAT THE REJECTION OF OUTSTANDING APPLICATIONS IS NOT CONTRARY TO THE PRINCIPLE OF LEGAL CERTAINTY .

23 CONSEQUENTLY THE ANSWER TO THE THIRD QUESTION SHOULD BE THAT ARTICLE 3 ( 3 ) OF REGULATION NO 2044/75 , AS INTERPRETED ABOVE , IS NOT CONTRARY EITHER TO ARTICLE 5 ( 4 ) OF REGULATION NO 876/68 OR TO THE PRINCIPLE OF LEGAL CERTAINTY .

COSTS
24 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,
THE COURT ( SECOND CHAMBER )
IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN BY ORDER OF 12 OCTOBER 1982 , HEREBY RULES :
1 . ARTICLE 3 ( 3 ) OF REGULATION ( EEC ) NO 2044/75 OF THE COMMISSION OF 25 JULY 1975 ON SPECIAL DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF IMPORT AND EXPORT LICENCES AND THE ADVANCE FIXING OF REFUNDS IN RESPECT OF MILK AND MILK PRODUCTS ( OFFICIAL JOURNAL , L 213 , P . 15 ) MUST BE INTERPRETED AS MEANING THAT A MEASURE SUSPENDING THE ADVANCE FIXING OF EXPORT REFUNDS , ADOPTED IN CONFORMITY WITH REGULATION ( EEC ) NO 876/68 , MUST BE REGARDED AS A ' ' SPECIAL MEASURE ' ' ;

2 . ARTICLE 3 ( 3 ) OF REGULATION NO 2044/75 MUST BE INTERPRETED AS MEANING THAT APPLICATIONS FOR ADVANCE FIXING SUBMITTED BEFORE THE PERIOD OF SUSPENSION BUT ON WHICH A DECISION IS TO BE TAKEN DURING THAT PERIOD MUST BE REJECTED ;

3 . ARTICLE 3 ( 3 ) OF REGULATION NO 2044/75 , AS INTERPRETED ABOVE , IS NOT CONTRARY EITHER TO ARTICLE 5 ( 4 ) OF REGULATION NO 876/68 OR TO THE PRINCIPLE OF LEGAL CERTAINTY .